Armenian News Network / Groong

Memorandum on
The Genocide against the Armenians 1915-1923
and the application of the 1948 Genocide Convention

by Alfred de Zayas


The Convention is declaratory of a pre-existing internationally
wrongful act giving rise to both State responsibility and individual
penal liability


State responsibility for the crime of genocide did not begin with the
adoption by the United Nations General Assembly of the Genocide
Convention on 9 December 1948, or upon its entry into force on 12
January 1951.

At the time of the genocide against the Armenians, State
responsibility already existed for internationally wrongful acts, such
as the crime of genocide, and entailed both a responsibility to
provide compensation1 and the personal criminal liability of the
perpetrators.

The punishment of the crime of genocide - whether called
exterminations, mass liquidations or massacres - as well as the
obligation to make restitution to the survivors of the victims, were
envisaged by the victorious Allies of the First World War and included
in the text of the Peace Treaty of Sèvres of 10 August 1920 between
the Allies and the Ottoman Empire2.  This Treaty contained not only a
commitment to try Turkish officials for war crimes committed by
Ottoman Turkey against Allied nationals3, but also for crimes
committed against citizens of Turkey of different ethnic origin, in
particular the Armenians, crimes which today would be termed genocide
or crimes against humanity.


Pursuant to article 230 of the Treaty of Sèvres:

"The Turkish Government undertakes to hand over to the Allied Powers
the persons whose surrender may be required by the latter as being
responsible for the massacres committed during the continuance of the
state of war on territory which formed part of the Turkish Empire on
the 1st August 1914.  The Allied Powers reserve to themselves the
right to designate the Tribunal which shall try the persons so accused
and the Turkish Government undertakes to recognise such Tribunal...."4

Pursuant to article 144 of the Treaty of Sèvres:

"The Turkish Government recognises the injustice of the law of 1915
relating to Abandoned Properties (Emval-I-Metroukeh), and of the
supplementary provisions thereof, and declares them to be null and
void, in the past as in the future.

"The Turkish Government solemnly undertakes to facilitate to the
greatest possible extent the return to their homes and
re-establishment in their businesses of the Turkish subjects of
non-Turkish race who have been forcibly driven from their homes by
fear of massacre or any other form of pressure since January 1, 1914.
It recognises that any immovable or movable property of the said
Turkish subjects or of the communities to which they belong, which can
be recovered, must be restored to them as soon as possible, in
whatever hands it may be found.... The Turkish Government agrees that
arbitral commissions shall be appointed by the Council of the League
of Nations wherever found necessary. .. These arbitral commissions
shall hear all claims covered by this Article and decide them by
summary procedure."5

Because of the post-World War I international political disarray, the
rise of the Soviet Union, the withdrawal of British military presence
from Turkey 6, the isolationist policies of the United States,7 the
abdication of the Sultan and the rise of Kemalism in Turkey, the
Treaty of Sèvres was never ratified8.  No international criminal
tribunal as envisaged in Article 230 was ever established.  No
arbitral commissions as stipulated for in article 144 were ever set
up.

Eventually a new arrangement emerged between Kemalist Turkey and the
Allies (British Empire, France, Italy, Japan, Greece, Romania and the
Serbo-Croat-Slovene state), the Treaty of Lausanne of 24 July 1923,
which abandoned the Allied demand for international trial and
punishment of the Ottoman Turks for the genocide against the
Armenians, the commitment to grant reparations to the survivors of the
genocide, and the Sèvres recognition of a free Armenian State (Section
VI, Articles 88-93), which had declared its independence on 28 May
1918, but in the end lost Western Armenia to Turkey and Eastern
Armenia to a communist takeover (backed by Soviet Red Army units),
which would ultimately lead to incorporation into the Soviet Union as
a Soviet Republic.

Notwithstanding the fact that the Treaty of Sèvres never entered into
force, the text of the Treaty remains eloquent evidence of the
international recognition of the crime of "massacres" against the
Armenian population of Turkey.  Prior to Sèvres, on 28 May 1915, the
Governments of France, Great Britain and Russia had issued a joint
declaration denouncing the Ottoman Government's massacre of the
Armenians as constituting "crimes against humanity and civilization
for which all the members of the Turkish Government would be held
responsible together with its agents implicated in the massacres."9.
Subsequently, on 18 January 1919, the British High Commissioner,
Admiral Arthur Calthorpe, informed the Turkish Foreign Minister that
"His Majesty's Government are resolved to have proper punishment
inflicted on those responsible for the Armenian massacres".10 In this
context, the High Commissioner drew up a list of 142 persons whose
surrender would be demanded from the Sultan once the peace treaty went
into effect, 130 of whom were specifically charged with massacring
Armenians.11 Britain held some 120 Turkish prisoners at Malta for
nearly two years, awaiting trial, but was blackmailed into releasing
them in 1921-22 in exchange for British officers and men who had been
taken hostage by the Turkish Government.

Further evidence of the genocide is provided by the prosecution, on
the basis of articles 45 and 170 of the Ottoman Penal Code, of several
ministers in the wartime Turkish cabinet and leaders of the Ittihad
party, including the main architect of the genocide, the Young Turk
leader Talaat Pasha, who were found guilty, many in absentia, by an
Ottoman court martial, on 5 July 1919, of "the organization and
execution of the crime of massacre" against the Armenian population.12
Further trials were conducted before other Ottoman courts, partly on
the basis of article 171 of the Ottoman military code concerning the
offence of plunder of goods, and invoking "the sublime precepts of
Islam" as well as "humanity and civilization" to condemn "the crimes
of massacre, pillage and plunder"13.  These trials resulted in the
conviction and execution of three of the perpetrators, Mehmed Kemal,
county executive of Bogazhyan, Abdullah Avni, of the Erzincan
gendarmerie, and Behramzade Nusret, Bayburt county executive, and
District Commissioner of Ergani and Urfa (Edessa).14

Although the first tentative step toward defining and punishing
genocide failed because of Turkish nationalism and Allied
indifference, consensus on the reality of the genocide had been
largely achieved.  Of all failures to punish the war criminals of the
First World War, this one was the most regrettable and it would have
terrible consequences. 15

At the end of the WWII the victorious Allies, pursuant to the London
Agreement of 8 August 194516, adopted the Charter of the International
Military Tribunal, which provided in Article 6 c) for the prosecution
of the crime of genocide ("murder, extermination, enslavement,
deportation and other inhumane acts committed against any civilian
population") as international crimes within the newly formulated
offence of "crimes against humanity".

In the History of the United Nations War Crimes Commission, we
discover that the Armenian genocide was very much in the minds of the
drafters of the London Agreement:

"The provisions of Article 230 of the Peace Treaty of Sèvres were
obviously intended to cover, in conformity with the Allied note of
1915 ... offences which had been committed on Turkish territory against
persons of Turkish citizenship, though of Armenian... race. This article
constitutes, therefore, a precedent for Articles 6 c) and 5 c) of the
Nuremberg and Tokyo Charters, and offers an example of one of the
categories of 'crimes against humanity' as understood by these
enactments."17

The term genocide itself was officially used in the indictment of 18
October 1945, charging under count 3 that the defendants had committed
murder and ill-treatment of civilian populations, and, in particular:

"conducted deliberate and systematic genocide, viz., the extermination
of racial and national groups, against the civilian populations of
certain occupied territories in order to destroy particular races and
classes of people and national, racial or religious groups ..."18

In his concluding statement, the British Prosecutor, Sir Hartley
Shawcross, stated that:

"Genocide was not restricted to extermination of the Jewish people or
of the Gypsies. It was applied in different forms to Yugoslavia, to
the non-German inhabitants of Alsace-Lorraine, people of the Low
countries and of Norway.  The techniques varied from nation to nation,
from people to people.  The long-term aim was the same in all cases
..."19

By Resolution 95 (1) of 11 December 1946, the General Assembly
"affirms the principles of international law recognized by the Charter
of the Nürnberg Tribunal and the judgment of the Tribunal", and in
Resolution 96 (1) of the same date, it confirmed "that genocide is a
crime in international law, which the civilized world condemns, and
for the commission of which principals and accomplices - whether
private individuals, public officials or statesmen, and whether the
crime is committed on religious, racial, political or any other
grounds - are punishable"20 .

Professor Hersch Lauterpacht wrote in his standard Oppenheim/Lauterpacht
textbook on "International Law":

"It is apparent that, to a considerable extent, the Convention amounts
to a registration of protest against past misdeed of individual or
collective savagery rather than to an effective instrument of their
prevention or repression.  Thus, as the punishment of acts of genocide
is entrusted primarily to the municipal courts of the countries
concerned, it is clear that such acts, if perpetrated in obedience to
national legislation, must remain unpunished unless penalized by way
of retroactive laws.  On the other hand, the Convention obliges the
Parties to enact and keep in force legislation intended to prevent and
suppress such acts, and any failure to measure up to that obligation
is made subject to the jurisdiction of the International Court of
Justice and of the United Nations, With regard to the latter, the
result of the provision in question is that acts of commission or
omission in respect of genocide are no longer, on any interpretation
of the Charter, considered to be a matter exclusively within the
domestic jurisdiction of the States concerned. For the Parties
expressly concede to the United Nations the right of intervention in
this sphere.  This aspect of the situation constitutes a conspicuous
feature of the Genocide Convention-a feature which probably outweighs,
in its legal and moral significance, the gaps, artificialities and
possible dangers of the Convention."21

In this context, it is useful to look at the language of the
Convention, which does not purport to create a new crime, but
recognizes in the preamble "that at all periods of history genocide
has inflicted great losses on humanity" and in Article 1 "The
Contracting Parties confirm that genocide, whether committed in time
of peace or in time of war, is a crime under international law..."  It
is important to note that the contracting parties do not "declare" or
"proclaim" for the future, but "confirm" that genocide is an
international crime.

Moreover, in the view of leading publicists in public international
law, the Genocide Convention of 1948 was not constitutive of a new
offence in international law termed "genocide", but was declaratory of
the pre-existing crime22; in other words, the Convention merely
codified the prohibition of genocide, which was already binding
international law.  In this sense, the Convention is necessarily both
retrospective and future-oriented.

What the Genocide Convention added to the existing body of
international law was an affirmative obligation on States parties to
make provision for effective penalties for all acts punishable under
the Convention (article V), a duty to prosecute (article VI) by a
competent national tribunal or by an international criminal court to
be established.  The Convention also creates a preventive mechanism by
urging States to call upon organs of the United Nations to take
appropriate measures (article VIII), and confers jurisdiction on the
International Court of Justice in all matters relating to the Genocide
Convention, including determination of the responsibility of a State
for genocide (article IX).

In its 1951 Advisory Opinion, the International Court of Justice
stated that "the principles underlying the Convention are principles
which are recognized by civilized nations as binding on all States,
even without any conventional obligation."23

In this sense, the UN Commission on Human Rights noted in 1969 that
"It is therefore taken for granted that as a codification of existing
international law the Convention on the prevention and Punishment of
the Crime of Genocide did neither extend nor restrain the notion
genocide, but that it only defined it more precisely."24

Even though the Genocide Convention has not been universally ratified,
the prohibition of genocide must be deemed to be jus cogens25.  As of
February 2003, 134 of the 191 member States of the United Nations had
ratified the Convention.  Moreover, as the International Court of
Justice elaborated in the Barcelona Traction Case (Second Phase),
there are distinctions to be drawn between State obligations arising
vis-à-vis another state and obligations erga omnes, or "towards the
international community as a whole".  The Court stated:

"By its very nature, the outlawing of genocide, aggression, slavery
and racial discrimination are the concern of all States.  In view of
the importance of the rights involved, all States can be held to have
a legal interest in their protection; they are obligations erga
omnes...."26

It is precisely because of its erga omnes quality that the crime of
genocide cannot be subject to prescription, and that State
responsibility for the crime, i.e. the obligation of the genocidal
State to make reparation, does not lapse with time.  This is
independent of a determination whether or not the Genocide Convention
applies retroactively to the Holocaust or to the genocide against the
Armenians.


The rule of non-retroactivity

The positivist approach to international law insists on a basic rule
of non-retroactivity.  As Professor Charles Rousseau stated,
"International law appears to be determined by the principles of
non-retroactivity. This principle is the result of both the treaties
and the diplomatic and judicial practice."27

Article 28 of the Vienna Convention on the Law of Treaties provides
that "Unless a different intention appears from the treaty or is
otherwise established, its provisions do not bind a party in relation
to any act or fact which took place or any situation which ceased to
exist before the date of the entry into force of the treaty with
respect to that party."

The rule of non-retroactivity, however, has known many exceptions,
most notably in the context of "crimes against peace" .  In this
connection Professor Hans Kelsen commented:

"The rule against retroactive legislation is a principle of
justice. Individual criminal responsibility represents certainly a
higher degree of justice than collective responsibility, the typical
technique of primitive law.  Since the internationally illegal acts
for which the London Agreement established individual criminal
responsibility were certainly also morally most objectionable, and the
persons who committed these acts were certainly aware of their immoral
character, the retroactivity of the law applied to them can hardly be
considered as absolutely incompatible with justice. ... In case two
postulates of justice are in conflict with each other, the higher one
prevails; and to punish those who were morally responsible for the
international crime of the Second World War may certainly be
considered as more important than to comply with the rather relative
rule against ex post facto laws, open to so many exceptions." 28

The general rule of non-retroactivity of treaties and conventions,
which was relevant in Nuremberg in connection with the new concept of
a "crime against peace", is not however of relevance in the context of
the crime of genocide, which has always been a crime under national
penal laws, as a manifestation of multiple murder, and which,
moreover, must be seen as an international crime under "general
principles of law".29

Reference to the "general principles of law" is found, for instance,
in the famous "Martens Clause", contained in the preamble of the 1899
and 1907 Hague Convention on Land Warfare:

"Until a more complete code of the laws of war has been issued, the
High Contracting Parties deem it expedient to declare that, in cases
not included in the Regulations adopted by them, the inhabitants and
the belligerents remain under the protection and the rule of the
principles of the law of nations as they result from the usages
established among civilized peoples, from the laws of humanity, and
the dictates of the public conscience."

Thus, the Genocide Convention of 1948 can be applied retroactively,
because it is declarative of pre-existing international law. There is
precedent for the retroactive application of treaties, e.g.

The language of the Genocide Convention neither excludes nor requires
its retroactive application.  In other words - there is nothing in the
language of the Convention that would prohibit its retro-active
application.  By contrast, there are numerous international treaties
that specifically state that they will not apply retroactively.  For
example, article 11 of the 1998 Statute of the International Criminal
Court specifies that "the Court has jurisdiction only with respect to
crimes committed after the entry into force of this Statute".

According to the article 31 of the Vienna Convention on the Law of
Treaties, the principal rule of interpretation is "the ordinary
meaning given to the terms of the treaty in their context and in the
light of its object and purpose".  The retroactive application of the
Genocide Convention is compatible with the ordinary meaning of terms
in the light of the object and purpose of the Convention.  Further,
such retroactive application appears necessary, in order to serve the
important object of deterring future acts of genocide (prevention) by
way of establishing the precedent of punishing acts of genocide that
occurred prior to its entry into force (suppression).  According to
article 32 of the Vienna Convention on the Law of Treaties, the use of
the travaux préparatoires of any treaty or convention is deemed only a
supplementary means of interpretation.  The travaux préparatoires of
the Genocide Convetnion, however, are inconclusive with regard to the
issue of retroactive application.  Whereas several delegations were
future-oriented, others saw the problem more broadly, in the light of
the retroactive application of the London Charter of 8 August 1945 to
the Nazi crimes of genocide that had preceded it, e.g. the Polish
representative, Professor Manfred Lachs, and the United Kingdom
Representative, Sir Hartley Shawcross.30


Non-prescription of the crime of genocide

When the United Nations drafted the Convention on the Non-Applicability
of Statutory Limitations to War Crimes and Crimes Against Humanity
(adopted 26 November 1968, in force 11 November 1970), it clearly and
deliberately pronounced its retroactive application.  In Article 1 it
stipulated "No statutory limitation shall apply to the following crimes,
irrespective of the date of their commission... the crime of
genocide as defined in the 1948 Convention...."  (emphasis added)

The principle of nullum crimen sine lege, nulla poena sine lege
praevia (no crime without law, no penalty without previous law), laid
out in paragraph 1 of article 15 of the International Covenant on
Civil and Political Rights is conditioned as follows in paragraph 2:
"Nothing in this article shall prejudice the trial and punishment of
any person for any act or omission which, at the time when it was
committed, was criminal according to the general principles of law
recognized by the community of nations."

Similarly, article 11, paragraph 2, of the Universal Declaration of
Human Rights of 10 December 1948 stipulates that the prohibition of ex
post facto penal sanctions does not apply if the offence was an
offence under national or international law.

In this context it is relevant to recall the double vocation of the
Genocide Convention, namely to prevent and to punish the crime of
genocide.  In order to prevent genocide, it is important to deter
future offenders by abundant precedent of punishment of prior
offenders.  Indeed, the punishment of Nazi officials for participation
in the crime of genocide has made the horrible reality of genocide
visible and concrete, so that it can be perceived by all as a crime.
One consequence of the universal recognition that genocide is a crime
is that the criminal, besides being condemned and punished for the
crime, must not be allowed to keep the fruits of the crime.  Thus,
side by side with the recognition of genocide as a criminal offence is
the necessity to undo its effects and the obligation to grant
restitution and compensation to the victims.

The crime of genocide has been the subject of prosecutions based on ex
post facto national laws with reference to the Genocide Convention.

Genocide was also charged in three of the successor trials held at
Nuremberg pursuant to Control Council Law No. 10, before US military
tribunals following the international military tribunal proceedings.
In United States v. Alstötter the Court cited General Assembly
Resolution 96(I) on four occasions:

"The General Assembly is not an international legislature, but it is
the most authoritative organ in existence for the interpretation of
world opinion. Its recognition of genocide as an international crime
[in Resolution 96(I)] is persuasive evidence of the fact. We approve
and adopt its conclusions ...[We] find no injustice to persons tried for
such crimes. They are chargeable with knowledge that such acts were
wrong and were punishable when committed"31

In the Einsatzgruppen trial, the defendants were charged with
participation in a "systematic program of genocide, aimed at the
destruction of foreign nations and ethnic groups, in part by murderous
extermination, and in part by elimination and suppression of national
characteristics"32

The first national prosecutions specifically on the crime of genocide,
but without reference to the Genocide Convention, which had not yet
been adopted, were carried out by Polish courts.  Thus, in July 1946,
Artur Greiser was charged with and convicted of genocide.33.

The leading prosecution by a national court, with reference to the
Genocide Convention, was carried out by the State of Israel.  In 1960
Adolf Eichmann, a Nazi official in World War II, was abducted from
Argentina and taken to Israel for trial under Israeli law for his
involvement in the genocide against the Jews during the war.  Eichmann
was prosecuted under the "Nazi and Nazi Collaborators (Punishment) law
of 1951", which was modelled on the genocide provision of the 1948
Genocide Convention.34 He was charged on four counts of genocide
corresponding to the first four subparagraphs of article II of the
Convention: killing Jews, causing serious physical and mental harm,
placing Jews in living conditions calculated to bring about their
physical destruction, and imposing measures intended to prevent births
among Jews.35

Eichmann challenged the jurisdiction of the Israeli Court with
reference to article 6 of the Genocide Convention, which stipulates:

"The Contracting Parties undertake to enact, in accordance with their
respective Constitutions, the necessary legislation to give effect to
the provisions of the present Convention and, in particular, to
provide effective penalties for persons guilty of genocide or of any
of the other acts enumerated in article III."

In rejecting Eichmann's objections, the District Court held:

"We must ... draw a clear distinction between the first part of Article
1, which lays down that 'the Contracting Parties confirm that
genocide, whether committed in time of peace or in time of war, is a
crime under international law' - a general provision which confirms a
principle of customary international as 'binding on States, even
without any conventional obligation' - and Article 6, which comprises
a special provision undertaken by the contracting parties with regard
to the trial of crimes that may be committed in the future".

Specifically on the issue of retroactivity, the Supreme Court of
Israel endorsed the view of the District Court concerning the
customary nature of the crime of genocide, and noted that "the
enactment of the Law was not from the point of view of international
law a legislative act which conflicted with the principle nulla poena
[no penalty without previous law] or the operation of which was
retroactive, but rather one by which the Knesset gave effect to
international law and its objectives."36

A number of courts in the United States have dealt with the question
of ex post facto legislation by relying on the judgment of the
International Military Tribunal at Nuremberg to the effect that the
Nuremberg Charter was declarative of international law and was not new
law.  In allowing the extradition to Israel of John Demjanjuk, the
United States District Court for Ohio and the Circuit Court for the
sixth Circuit held:

"The Nuremberg International Military Tribunal provided a new forum in
which to prosecute persons accused of war crimes committed during
World War II pursuant to an agreement of the wartime Allies, see The
Nürnberg Tribunal, 6 F.R.D. 69.  That tribunal consistently rejected
defendants' claims that they were being tried under ex post facto
laws.  Id.... the statute is not retroactive because it is
jurisdictional and does not create a new crime.  Thus, Israel has not
violated any prohibition against the ex post facto applications of
criminal laws which may exist in international law." 37

There are many other precedents of retrospective application of
international law in other countries in matters concerning genocide.
For instance, in the case of Regina v. Imre Finta in Canada, a trial
for "crimes against humanity" was carried out on the basis of a 1987
Canadian statute that permits retrospective application of
international law.  In its judgment the Court recognized the existence
of "crimes against humanity" under international law before 194538
 
The practice of courts in other countries also vindicates the validity
of the principles contained in the Genocide Convention.  Although
prosecution has not been based on the Genocide Convention itself but
rather on German penal law, the Federal Republic of Germany has
prosecuted more than sixty thousand Germans and other nationals for
war crimes and complicity in the crime of genocide committed during
World War II, prior to the entry into force of the Genocide Convention,
and many judgments make reference to the Genocide Convention.  The
German Government has similarly recognized its international
obligation to make restitution of property stolen from victims of
genocide and to grant compensation to the survivors of the victims.39

It is important to note, moreover, that whether or not the Genocide
Convention itself applies, State practice and, in particular the
Eichmann case, shows that the crime of genocide can be prosecuted on
the basis of national law enacted following the commission of the
offence.  A fortiori civil liability for genocide can also be imposed
on the basis of ex post facto legislation.
 

The question of prescription in criminal matters

It is proper to read the Genocide Convention in the light of the
United Nations Convention on the Non-applicability of Statutory
Limitations to War Crimes and Crimes Against Humanity of 26 November
1968 (in force 11 November 1970).  Article 1(b) of this treaty
specifically excludes the application of statutory limitation to "the
crime of genocide as defined in the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide, even if such acts do not
constitute a violation of the domestic law of the country in which
they were committed" irrespective of the date of commission.

Although Turkey is not a State party to this Convention, it is
generally accepted international law that crimes of genocide must be
prosecuted regardless of when they occurred and that the obligation of
States to make restitution of or pay compensation for properties
obtained by means of genocide does not lapse with time.40

In its judgment of 6 October 1983 in the case concerning Klaus Barbie,
the French Cour de Cassation rejected the objections of the defence
and stated that the prohibition on statutory limitations for crimes
against humanity is now part of customary international law.41 France
also enacted a law on 26 December 1964 dealing with crimes against
humanity as "imprescriptibles" by nature (Nouveau Code penal de 19564,
Arts. 211-1 to 213-5)42.

The competent tribunal: universal jurisdiction43 and "protective principle"

In the Eichmann case the Israeli Court took the view that crimes
against humanity constitute delicta juris gentium (crimes against the
law of nations) , to which the principle of universal jurisdiction has
at all times been generally applicable.  In rejecting Eichmann's
jurisdictional challenge, the District Court held:

"The abhorrent crimes defined in this Law are not crimes under Israel
law alone. These crimes, which struck at the whole of mankind and
shocked the conscience of nations, are grave offences against the law
of nations itself (delicta juris gentium).  Therefore, so far from
international law negating or limiting the jurisdiction of countries
with respect to such crimes, international law is, in the absence of
an International Court, in need of the judicial and legislative organs
of every country to give effect to its criminal interdictions and to
bring the criminals to trial. The jurisdiction to try crimes under
international law is universal."

It drew upon Article 6 of the Genocide Convention to explain that the
purpose of the Convention could not be to limit prosecution only to
the States where the offence had been perpetrated:

"Moreover, even with regard to the conventional application of the
Convention, it is not to be assumed that Article 6 is designed to
limit the jurisdiction of countries to try crimes of genocide by the
principle of territoriality... Had Article 6 meant to provide that those
accused of genocide shall be tried only by 'a competent tribunal of
the State in the territory of which the act was committed' (or by an
'international court' which has not been constituted), then that
article would have foiled the very object of the Convention to prevent
genocide and inflict punishment therefor..."

Accordingly, the District Court took the view that it was entitled to
exercise jurisdiction under the "protective principle", "which gives
the victim nation the right to try any who assault its existence".
The Court cited Hugo Grotius and other authorities:

"The State of Israel, the sovereign State of the Jewish people,
performs through its legislation the task of carrying into effect the
right of the Jewish people to punish the criminals who killed its sons
with intent to put an end to the survival of this people.  We are
convinced that this power confirms to the subsisting principles of
nations."44

The Eichmann precedent illustrates the possibility for a State that
did not exist at the time of the crime (Israel) to try and punish a
foreign citizen for genocide, when it has a legitimate and fundamental
link to the victims.

Similarly, a State that did not exist at the time of the genocide
against the Armenians (Armenia) could represent the rights of the
victims of the Armenian genocide and their survivors.  Moreover, based
on the theory of legitimate and fundamental links to the victims,
other States like France, Canada and the United States could represent
the rights of the descendants of the survivors of the Armenian
Genocide, who have become citizens of or currently reside in France,
Canada, and the United States.


The Doctrine of State Responsibility for Wrongful Acts

A general principle of international law stipulates that a State is
responsible for injuries caused by its wrongful acts and bound to
provide reparation for such injury.45 The Permanent Court of
International Justice enunciated this principle in the Chorzow Factory
Case as follows: "it is a principle of international law, and even a
general conception of law, that any breach of an engagement involves
an obligation to make reparation."46

It should be stressed that the wrong in question is not just a mere
violation of international law engaging inter-state responsibility,
but the gravest criminal violation of international law engaging, as
the International Court of Justice has determined, international
responsibility erga omnes - an obligation of the State toward the
international community as a whole.

Thus, the international crime of genocide imposes obligations not only
on the State that perpetrated the genocide, but also on the entire
international community : (a) not to recognize as legal a situation
created by an international crime, (b) not to assist the author of an
international crime in maintaining the illegal situation, and (c) to
assist other States in the implementation of the aforementioned
obligations.47 In a very real sense, the legal impact of the erga
omnes nature of the crime of genocide goes far beyond the mere
retroactivity of application of the Genocide Convention.  It imposes
an affirmative obligation on the international community not to
recognize an illegal situation resulting from genocide.  The mechanism
of international mediation and conciliation can be called upon to
design appropriate schemes to redress the wrong.
 

The remedy of Restitution has not lapsed because of prescription

Because of the continuing character of the crime of genocide in
factual and legal terms, the remedy of restitution has not been
foreclosed by the passage of time48.  Thus the survivors of the
Armenian genocide, both individually and collectively, have standing
to advance a claim for restitution.  This has been also the case with
the Jewish survivors of the Holocaust, who have successfully claimed
restitution against many States where there property had been
confiscated.49 Whenever possible restitutio in integrum (complete
restitution, restoration to the previous condtion) should be granted,
so as to re-establish the situation that existed before the violation
occurred.  But where restitutio in integrum is not possible,
compensation may be substituted as a remedy.

Restitution remains a continuing State responsibility also because of
Turkey's current human rights obligations under international treaty
law, particularly the corpus of international human rights law.

The United Nations Basic Principles and Guidelines on the Right to
Reparation for Victims of Gross Violations of Human Rights and
International Humanitarian Law provide in part:

"Reparation may be claimed individually and where appropriate
collectively, by the direct victims of violations of human rights and
international humanitarian law, the immediate family, dependants or
other persons or groups of persons closely connected with the direct
victims."

Particularly important are Principle 9:

"Statutes of limitations shall not apply in respect of periods during
which no effective remedies exist for violations of human rights or
international humanitarian law.  Civil claims relating to reparations
for gross violations of human rights and international humanitarian
law shall not be subject to statutes of limitations."

and Principle 12:

"Restitution shall be provided to re-establish the situation that
existed prior to the violations of human rights or international
humanitarian law.  Restitution requires, inter alia, ... return to one's
place of residence and restoration of... property."50

UN Sub-Commission member Mr. Louis Joinet presented two reports
containing comparable language:

"Any human rights violation gives rise to a right to reparation on the
part of the victim or his beneficiaries, implying a duty on the part
of the State to make reparation and the possibility of seeking redress
from the perpetrator"51

Although the International Criminal Court, established in July 2002,
does not have jurisdiction to examine instances of genocide having
occurred prior to the entry into force of the Rome Statute, it does
reaffirm the international law obligation of providing reparation to
victims.  Article 75, paragraph 1, of the Statute stipulates that "The
Court shall establish principles relating to reparations", which it
defines as restitution, compensation and rehabilitation.
 
In the context of reparation for gross violations of human rights, two
other general principles are relevant.  the principle ex injuria non
oritur jus (from a wrong no right arises), that no State should be
allowed to profit from its own violations of law, and the principle of
"unjust enrichment".52 It is a general principle of law that the
criminal cannot keep the fruits of the crime.53

The lands, buildings, bank accounts and other property of the Armenian
communities in Turkey were systematically confiscated.  Should there
be no restitution for this act of mass theft, accompanying, as it did,
the ultimate crime of genocide ...

A particularly macabre chapter of the massacres against the Armenians
concerns the title to life insurances of the victims of the genocide.
The United States Ambassador to the Ottoman Empire, Henry Morgenthau,
noted in his memoirs a most revealing incident: "One day Talaat made
what was perhaps the most astonishing request I had ever heard.  The
New York Life Insurance company and the Equitable Life of New York had
for years done considerable business among the Armenians.  The extent
to which this people insured their lives was merely another indication
of their thrifty habits. 'I wish' Talaat now said, 'that you would get
the American life insurance companies to send us a complete list of
their Armenian policy holders. They are practically all dead now and
have left no heirs to collect the money.  It of course all escheats to
the State. The Government is the beneficiary now."54 Ambassador
Morgenthau did not comply with Talaat's request.

In denying the applicability of statutes of limitation to restitution
claims by survivors of the Holocaust, Professor Irwin Cotler argues:

"The paradigm here is not that of restitution in a domestic civil
action involving principles of civil and property law, or restitution
in an international context involving state responsibility in matters
of appropriation of property of aliens; rather, the paradigm - if
there can be such a paradigm in so abhorrent a crime - is that of
restitution for Nuremberg crimes, which is something dramatically
different in precedent and principles. .. Nuremberg crimes are
imprescribable55, or Nuremberg law - or international laws anchored in
Nuremberg Principles - does not recognize the applicability of
statutes of limitations, as set froth in the Convention on the
Non-Applicability of Statutory Limitations to War Crimes and Crimes
Against Humanity"56

The same argument applies with respect to the survivors of the
Armenian genocide and their descendents.  It is an enduring challenge
to international morality that Turkey continues to benefit from
Armenian lands and buildings and that it even cashed in on the life
insurance of some of the Armenians whom the Ottoman Government itself
had exterminated.
 

Continuation of the Crime of Genocide: the destruction of historical
monuments

A further argument against the notion of prescription with regard to
the Armenian genocide is that whereas the killing stopped around 1923
after most of the Armenians in Turkey had been murdered, the
destruction of their property and the destruction of their historical
memory continued.  Such acts were intended to continue the work of
genocide by destroying memory - the historical proof of the presence
of twenty centuries of Armenians in Asia Minor.  Their churches and
monasteries were burned and destroyed by explosion in the period from
1915 to 1922.  In all, 1036 churches or monasteries were destroyed.
The Khtzkonk monastery (11th century) was destroyed by dynamite after
the Second World War.  The Cathedral of Urfa was converted into a
museum.  The building of the Church of Christ Saviour at Ani was cut
in two.  The Church of Ordou was transformed into a prison and the
inscriptions in Armenian were erased..  The Armenian inscriptions were
removed from the Central School in Constantinople.  Besides the
deliberate destruction, the Turkish Government has contributed to the
decay and destruction of Armenian buildings by denying building
permits needed to carry out repairs.57 The scale of destruction of the
Armenian cultural heritage has been so widespread and systematic over
the decades, that these few examples should not be misinterpreted as
minimizing the severity and thoroughness of the continuation of the
genocide.

Among the Turkish acts of memory-destruction can be listed the
suppression of the name "Armenia" from official maps and the changing
of the names of Armenian villages and towns in Asia Minor, which
continued late into the 1950s.  As University of California Professor
Kouymjian elaborated to the Tribunal Permanent des Peuples in Paris in
1984, ninety per cent of the historical Armenian names have been
modified.58 Inscriptions in Armenian language continue to be removed
from buildings and monuments.  And this happened in contravention of
articles 38 to 44 of the Treaty of Lausanne of 1923, which was
intended to protect the rights of minorities, including the cultural
rights of the Armenian minority.

The absurdity of the prevailing situation with regard to the
non-restitution of Armenian properties can be illustrated by the
following hypothetical situation: what would be the reaction of the
international legal community, if the post-war German Government had
converted Jewish synagogues into Christian Churches and kept the lands
and houses of the victims of the Holocaust ...

Yet another form of continuing the genocide is by rehabilitating the
murderers.  In March 1943 the mortal remains of the principal
architect of the genocide, Ittihad Interior Minister Talaat Pasha,
were ceremonially repatriated from Germany to Turkey, where he was
re-interred on the Hill of Liberty.59 Subsequently at least two
streets have been named after him.
  

Doctrine of State Succession

In the report of the independent expert on the right to restitution,
compensation and rehabilitation for victims of grave violations of
human rights, Mr. M. Cherif Bassiouni reiterated a basic principle of
succession:

"In international law, the doctrine of legal continuity and principles
of State responsibility make a successor Government liable in respect
of claims arising from a former government's violations. "60

This applies a fortiori, in the case of genocide and its consequences
for the survivors and their descendants, because State responsibility
necessarily attaches to the State itself and does not allow for tabula
rasa.  Thus, it was consistent with international law for the Federal
Republic of Germany to assume full responsibility for the crimes
committed by the Third Reich.  This has also been the case with regard
to the responsibility of France to repair the wrongs committed by the
Vichy Government during the German occupation, and of Norway to grant
restitution for confiscations and other injuries perpetrated on Jewish
persons during the Quisling regime61.

Article 36 of the Vienna Convention on Succession of States in Respect
of State Property, Archives and Debts of 8 April 198362 provides that
a succession of States does not "as such affect the rights and
obligations of creditors".  Thus, the claims of the Armenians for
their wrongfully confiscated properties did not disappear with the
change from the Sultanate to the regime of Mustafa Kemal63.

The principle of responsibility of successor States has been held to
apply even when the State and government that committed the wrong were
not that of the successor State.  This principle was formulated, inter
alia, by the Permanent Court of Arbitration in the Lighthouse
Arbitration case64.  There France claimed that Greece was responsible
for a breach of State concessions to its citizens by the autonomous
State of Crete, committed before Greece's assumption of sovereignty
over Crete.  The PCA held that Greece was obligated to compensate for
Crete's breaches, because Greece was the successor State.

The principle of State succession undoubtedly applies to the Eastern
European States, and, in particular, to Serbia-Montenegro for the
crimes committed by the Federal Republic of Yugoslavia.65 State
practice, decisions of international tribunals and decisions of
domestic courts support this conclusion.


Bringing the genocide against the Armenians before the International
Court of Justice

Since both Turkey (31 July 1950) and Armenia (23 June 1993)66 are
States parties to the Genocide Convention, it would be possible to
invoke article VIII, which provides that any contracting party may
call upon the competent organs of the United Nations to take such
action as they consider appropriate for the "suppression" of genocide.
"Suppression" must mean more than just retributive justice.  In order
to suppress the crime, it is necessary to suppress, as far as
possible, its consequences.  This entails, besides punishing the
guilty, providing restitution and compensation to the surviving
generations.  Armenia may also invoke article IX of the Convention,
which provides that

"Disputes between the Contracting Parties relating to the
interpretation, application, or fulfilment of the present Convention,
including those relating to the responsibility of a State for genocide
or for any of the other acts enumerated in article III, shall be
submitted to the International Court of Justice at the request of any
of the parties to the dispute.".

Admittedly, the criminal law aspects of the Genocide Convention are of
lesser relevance in the Armenian context, since none of the
perpetrators of the genocide against the Armenians are still alive.
On the other hand, the Armenian properties that were wrongfully
confiscated have not been returned to the survivors of the genocide,
to their descendents or to the Armenian Church, nor has compensation
been paid to the survivors of the genocide or to their descendants.
In this context it is worth noting the important restitution of many
churches and monasteries in the ex Soviet republics including Armenia,
restitution that was effected in the 1990's for confiscations that had
occurred seventy years earlier, following the Bolshevik revolution .67
Based on this precedent, restitution of Armenian churches and
monasteries would appear not just morally mandated, but also entirely
implementable in practice.

A determination of the crime of genocide by the International Court of
Justice would facilitate the settlement of claims for restitution,
including the identification of cultural and other properties
confiscated and/or destroyed, such as churches, monasteries and other
assets of historic and cultural significance to the Armenian people,
that should be returned to their legal owners, the Armenian people and
the Armenian Church.

An objection on the part of Turkey about the standing of Armenia to
represent the rights of the descendants of the survivors of the
Armenian genocide would be countered by stating that the descendants
of the survivors of the Armenian genocide are citizens of Armenia.
Moreover, Armenia could offer Armenian citizenship to all Armenians in
the diaspora, as Russia has done with respect to former citizens of
the Soviet Union residing in the Baltic States.

© Alfred de Zayas, J.D. (Harvard), Dr.phil. (Göttingen)

23 Crêts de Pregny
CH-1218 Grand Saconnex, Switzerland
  zayas@bluewin.ch

Footnotes

[1] For instance, in the context of international armed conflict, 
article III of the 1907 Hague Convention IV on Land Warfare 
stipulates: "A belligerent party which violates the provisions of the 
said Regulations shall, if the case demands, be liable to pay 
compensation. It shall be responsible for all acts committed by persons 
forming part of its armed forces."

[2] [1920] UKTS 11, Martens, Recueil général des traités, 99, 3e série 
12, 1924, p. 720.

[3] Particularly for violations of the Hague Regulations on Land 
Warfare, appended to the IV. Hague Convention of 1907.

[4] American Journal of International Law, Volume 15, Supplement, 1921, 
Official Documents, p. 235.

[5] Ibid., p. 210.

[6] Paul Helmreich, From Paris To Sèvres, Ohio State University Press, 
Columbus, 1974, pp. 131 et seq.

[7] Although U.S. diplomats had condemned the genocide as early as 1915, 
the U.S. Government did not take any action to redress the injustices 
after the war. It is worth remembering that U.S. Ambassador Henry 
Morgenthau, Sr., had called the massacres "race murder" and that on 10 
July 1915 he had cabled Washington with the following description of 
the Ottoman policy: "Persecution of Armenians assuming unprecedented 
proportions. Reports from widely scattered districts indicate 
systematic attempt to uproot peaceful Armenian populations and through 
arbitrary arrests, terrible tortures, whole-sale expulsions and 
deportations from one end of the empire to the other accompanied by 
frequent instances of rape, pillage, and murder, turning into massacre, 
to bring destruction and destitution on them. These measures are not in 
response to popular or fanatical demand but are purely arbitrary and 
directed form Constantinople in the name of military necessity, often 
in districts where no military operations are likely to take place." 
Samantha Power, A Problem from Hell. America and the Age of Genocide, 
Basic Books, New York, 2002, p. 6.

[8] André Mandelstam, La Societé des Nations et les puissances devant le 
Problème Arménien,2d. ed. 1970.

[9] Egon Schwelb, "Crimes Against Humanity", 23 British Yearbook of 
International Law(1946), 178-226 at 181.

[10] FO 371/4174/118377 (folio 253), cited in Vahakn N. Dadrian, 
"Genocide as a Problem of National and International Law. The World War 
I Armenian Case and its contemporary Legal Ramifications" (1989), 14 
Yale Journal of International Law,pp. 221-334 at 282.

[11] James F. Willis, Prologue to Nuremberg. The Politics and Diplomacy 
of Punishing War Criminals of the First World War, Greenwood Press, 
Westport, Connecticut, 1982, p. 158.

[12] William Schabas, Genocide in International Law, Cambridge 
University Press, 2000, p. 21. See also Revised and updated report on 
the question of the prevention and punishment of the crime of genocide, 
prepared by Special Rapporteur Mr. Ben Whitaker (E/CN.4/Sub.2/1985/6): 
"At least 1 million, and possibly well over half of the Armenian 
population, are reliably estimated by independent authorities and 
eye-witnesses to have been killed or death-marched. This is 
corroborated by reports in United States, German and British archives 
and of contemporary diplomats in the Ottoman Empire, including those of 
its ally Germany. The German Ambassador, Baron Hans von Wagenheim, for 
example, on 7 July 1915 wrote "the government is indeed pursuing its 
goal of exterminating the Armenian race in the Ottoman Empire" 
(Wilhelmstrasse archives). Though the successor Turkish Government 
helped to institute trials of a few of those responsible for the 
massacres at which they were found guilty, the present official Turkish 
contention is that genocide did not take place although there were many 
casualties and dispersals in the fighting, and that all the evidence to 
the contrary is forged. See, inter alia, Viscount Bryce and A. Toynbee, 
The Treatment of Armenians in the Ottoman Empire 1915-16(London, HMSO, 
1916); G. Chaliand and Y. Ternon, Génocide des Arméniens 
1915-16(Brussels, Complexe, 1980); H. Morgenthau, Ambassador 
Morgenthau's Story(New York, Doubleday 1918); J. Lepsius, Deutschland 
und Armenien(Potsdam, 1921 ..." at p. 9, footnote 13..

[13] Trabzon Verdict, Takvimi Vekayi, No. 3616, Aug. 6, 1919, at 1-3, 
No. 3617, Aug. 7, 1919, at 2. Vahakn N. Dadrian, "Genocide as a Problem 
of National and International Law: The World War I Armenian Case and 
its Contemporary Legal Ramifications, in Yale Journal of International 
Law, Vol. 14, No. 2 (1989) pp. 221-334 at 308

[14] Dadrian, op.cit., p. 309.

[15]  James Willis, op.cit., p. 163.

[16] 8 U.N.T.S. 279; Reprinted in 39 American Journal of International 
Law, 257 (1945)(Supp).

[17] United Nations, War Crimes Commission, History of the United 
Nations War Crimes Commission and the Development of the Laws of War,p. 
45

[18] Trial of the Major War Criminals before the International Military 
Tribunal, Nuremberg, 14 November 1945 - 1 October 1946, Nuremberg, 
1947, Vol. I, pp. 43-44.

[19] Ibid, vol. XIX, pp. 497-498.

[20] Official Records of the First Session of the General Assembly, 
Fifty-fifth plenary meeting, 11 December 1946, ppe. 188-189.  See also 
Preamble of the Genocide Convention.

[21] Oppenheim/Lauterpacht, International Law, 8th edition, 1955, vol. 
I, p. 751. He adds: "It is clear that as a matter of law the Genocide 
Convention cannot impair the effectiveness of existing international 
obligations".

[22] Nehemiah Robinson, The Genocide Convention: A Commentary, New York: 
Institute of Jewish Affairs, 1960. Leo Kuper, International Action 
Against Genocide, London, Minority Rights Group, 1984. Hans Heinrich 
Jescheck, "Genocide" in R. Bernhardt (ed.), Encyclopaedia of Public 
International Law, Vol. 4, 2000, pp. 541-544. Dieter Blumenwitz, 
Rechtsgutachten über die Verbrechen an den Deutschen in Jugoslawien 
1944-48, Juristische Studien, München 2002, pp. 26-27, where Professor 
Blumenwitz affirms the retroactive application of the Genocide 
Convention to the killing of some 200,000 civilians, members of the 
ethnic German minority in Yugoslavia, by Tito partisans and militia in 
1944-45. Christian Tomuschat, "Die Vertreibung der Sudetendeutschen. 
Zur Frage des Bestehens von Rechtsansprüchen nach Völkerrecht und 
deutschem Recht", in Zeitschrift für Ausländisches öffentliches Recht 
und Völkerrecht, Vol. 56, 1996, pp. 1-69. Felix Ermacora, Die 
Sudetendeutschen Fragen, Munich, 1992, p. 178, where Professor Ermacora 
affirms the retroactive application of the Genocide Convention to the 
killing of some 250,000 civilians, members of the German ethnic 
minority of Czechoslovakia, in 1945-46.

[23] Reservations to the Convention on the Prevention and Punishment of 
the Crime of Genocide, Advisory Opinion, ICJ Reports (1951) pp. 
15-69.. See Diane F. Orentlicher, "Genocide" in Roy Gutman and David 
Rieff (eds.) , Crimes of War, New York 1999, pp. 153-157. Joe 
Verhoeven, "Le Crime de Génocide", in Revue belge de droit 
international, vol XXIV, 1991, pp. 5-26 at 13 

[24] Report of the ad hoc working group of experts established under 
Resolution 2(XXIII) and 2(XXIV) of the Commission on Human Rights, 
Doc.E/CN.4/984/Add.18.

[25] Ian Brownlie, Principles of Public International Law, fourth 
edition, Clarendon Press, Oxford, p. 513.

[26] Barcelona Traction, Light and Power Co., Ltd (Belgium v. 
Spain), ICJ Reports (1970) 3 at 32.

[27] Charles Rousseau, 1 Principes Généraux du droit international 
public 486 (1944).

[28] Hans Kelsen, "Will the Judgement in the Nuremberg Trial Constitute 
a Precedent in International Law?" 1 International Law Quarterly, 153, 
164-65 (1947). See also Hans Kelsen, "The Rule Against Ex post Facto 
Law and the Prosecution of the Axis War Criminals", 2 The Judge 
Advocate Journal8 (1945).   

[29] In his opening Statement at the International Military Tribunal, 
the British Chief Prosecutor Lord Hartley Shawcross stated: "There is 
thus no substantial retroactivity in the provisions of the Charter. It 
merely fixes the responsibility for a crime already clearly established 
as such by positive law upon its actual perpetrators. It fills a gap in 
international criminal procedure. There is all the difference between 
saying to a man, `You will now be punished for what was not a crime at 
all at the time you committed it,', and in saying to him `You will now 
pay the penalty for conduct which was contrary to law and a crime when 
you executed it, although, owing to the imperfection of the 
international machinery, there was at that time no court competent to 
pronounce judgement against you.'"

[30] Official Records of the Third Session of the General Assembly, 
Sixth Committee, Sixty-fourth meeting, Palais de Chaillot, Paris, 1 
October 1948, pp. 17-20, See also the statements of the Czechoslovak 
representative, Mr. Prochazka, stressing the need to connect the 
convention directly with the historical events which had proved the 
necessity for its existence, and to stress the relationship between 
genocide and the doctrines of nazism, fascism and Japanese 
imperialism.", Sixty-sixth meeting, 4 October 1948, pp. 29-30

[31] United States of America v. Alstötter et al. (1948) 6 LRTWC 1, 3TWC 
1, pp. 983.

[32] United States of America v. Greifeldt et al, (1948) 13 LRTWC 1, p. 
2.

[33] Poland v. Greiser (1948)13 LRTWC 70 (Supreme National Tribunal of 
Poland).

[34]   A-G Israel v. Eichmann(1968) 36 ILR 5 (District Court of 
Jerusalem), paras. 20-22. District Court Jerusalem, 11 December 1961 
"The Attoreney General of the Government of Israël v. Eichmann (case 
No. 40/61)" American Journal of International Law, 1962, p. 814.

[35] Schabas, op. cit., 387.

[36] Attorney-General v. Eichmann, (1968) 36 ILR 277, para. 11.

[37] In the Matter of the Extradition of John Demjanjuk, 612 F. Supp. 
544 (DC Ohio 1985), pp. 554-8.

[38] Regina v. Finta, 50 C.C.C. (3d) 247 ; 61 D.L.R. 85 (4th 1989). See 
also Green, Canadian Law, War Crimes and Crimes Against Humanity, 59 
British Yearbook of International Law, 217 (1988), Cherif Bassiouni, 
Crimes Against Humanity, 1992 Kluwer Academic Publishers, Dordrecht, 
pp. 144, 226-227.

[39] William A. Schabas, Genocide in International Law, Cambridge 
University Press, 2000, p. 443.

[40] General Assembly Resolutions 2538 (XXIV) of 15 December 1968 ; 
2583/ (XXIV of 15 December 1969, 2712 (XXV) of 15 December 1970: 2840 
(XXVI) of 18 December 1971, 3029 (XXVII) of 18 December 1972; 3074 
(XXVIII) of 3 December 1973, etc.

[41] Fédération nationale des deportés et internés et patriots et al v. 
Barbie, 78 International Law Reports125, p. 135.See Doman, "Aftermath 
of Nuremberg: The Trial of Klaus Barbie", 60 Colorado Law Review449 
(1989).

[42] Jacques Francillon, "Aspects juridiques des crimes contre 
l'humanité", in L'actualité du Génocide des Arméniens, Edipol.1999, pp. 
397-404 at 398.

[43] Cherif Bassiouni, "Univesal Jurisdiction for International Crimes: 
Historical Perspectives and Contemporary Practice", 42 Virginia Journal 
of International Law, 2001, pp. 81- 160.

[44] Ibid, para. 38.

[45] Malcolm Shaw, International Law, p. 481 "A breach of an 
international obligation gives rise to a requirement for reparation."; 
Wladyslaw Czaplinski, State Succession and State Responsibility, in 
Canadian Yearbook of International law 339 (1991): "State 
responsibility is a legal relationship created through the violation of 
an international legal obligation by a State; that violation gives rise 
to the duty to compensate for any resulting damage, one of the oldest 
principles of international law and universally recognized in 
international practice." Karl Zemanek, "Responsibility of States: 
General Principles" in R. Bernhardt (ed.), Encyclopaedia of Public 
International Law, Vol. 4, 2000, pp. 219-229; Mohammed Bedjaoui, 
"Responsibility of States: Fault and Strict Liability", in Bernhardt 
(ed.), pp. 212-216. Irwin Cotler, « Confiscated Jewish Property : The 
Holocaust, Thefticide and Restitution : A Legal Prespective » in : 20 
Cardozo Law Review, December 1998, pp. 601-624, p. 610.

[46] Chorzow Factory Case (Germany v. Poland), 1928 P.C.I.J. (ser.A) No. 
17. p. 29. Ignaz Seidl-Hohenveldern, "German Interests in Polish 
Upper Silesia Cases", in R. Bernhardt (ed.), Encyclopaedia of Public 
International Law, vol.II, 1995, pp, 550-553.

[47] Karl Zemanek, op.cit..p. 226.

[48] A leading international law expert in Europe, Professor Felix 
Ermacora, member of the UN Human Rights Committee, member of the 
European Commission on Human Rights, and Special Rapporteur for 
Afghanistan and Chile of the UN Commission on Human Rights, maintained 
this view. In a legal opinion on the continuing obligation to grant 
restitution to the expelled Germans from Czechoslovakia, some 250,000 
of whom had perished in the course of their ethnic cleansing 1945-46, 
Ermacora wrote: "Ist die Konfiskation von Privatvermögen Teil eines 
Völkermordes, so ist auch ihre Rechtsnatur Teil eines Rechtsganzen.D.h. 
der Vermögensentzug hatte für sich selbst im vorliegenden 
Gesamtzusammenhang Völkermordcharakter . Er unterliegt auch der 
Beurteilung aufgrund der Völkeremordkonvention, deren Partner sowohl 
die BRD als auch die Tschechoslowakei ist. Entsprechend den Regeln 
internationalen Rechts sind die Akte des Völkermordes - so auch die 
Vernichtung von Lebensbedingungen, wie sie durch einen totalen 
Vermögensentzug stattgefunden haben und mit der Vertreibung kombiniert 
waren, zumindest nach der Konvention über die Nichtverjährbarkeit von 
Verbrechen gegen die Menschlichkeit nicht verjährbar." Ermacora, die 
Sudetendeutschen Fragen, Munich, 1992, p. 178. 

[49] Irwin Cotler, op. cit., p. 609. Sabine Thomsen, "Restitution" in R. 
Bernhardt (ed.), Encyclopaedia of Public International Law, vol. 4, 
2000, pp. 229-32. "Nuremberg 50 years later: The restitution of Jewish 
Property and Norwegian Justice", Nordic Journal of International Law, 
1998, No. 3, pp. 275-287.

[50] Commission on Human Rights, fifty-third session, Doc. 
E/CN.4/1997/104. Compare with the first report by Professor Theo van 
Boven C/CH.4/Sub.2/1993/8 of 2 July 1993, section IX, and the second 
report C/CN.4/Sub.2/1996/7 of 24 May 1996. 

[51] Special Rapporteur Louis Joinet, Principle 36 in 
document E/CN.4/Sub.23/1997/20 of 26 June 1997 and Principle 33 in 
Document E/CN.4/Sub.2/1997/20/Rev.1 of 2 October 1997.

[52] Peter D. Maddaugh and John D. McCamus, Law of Restitution, Aurora, 
Ontario, 1990, pp. 484-493 . Even in the Old Testament we find an 
admonition against unjust enrichment, King James Version, 1 Kings, 
Chapter 21, verse 19: "Thus saith the Lord, Hast thou killed, and also 
taken possession?"  The story is that Naboth, a man from Jezreel, had a 
vineyard on the outskirts of the city near King Ahab's palace. The King 
coveted the land, because it was convenient to his palace, but Naboth 
did not want to sell, because the vineyard had been in his family for 
generations. Jezebel, Ahab's wife, persuaded the King to have Naboth 
falsely accused of blasphemy and stoned to death. When King Ahab went 
to take possession of the vineyard, Elijah came to him and admonished 
the King: "Isn't killing Naboth bad enough? Must you rob him, 
too? Because you have done this, dogs shall lick your blood outside the 
city just as they licked the blood of Naboth!" , The Living Bible(new 
translation), Tyndale House Publishers, Wheaton, Illinois.1971.

[53] J.W. Wade, "Acquisition of Property by wilfully killing another - A 
Statutory Solution ", 49 Harvard Law Review, pp. 715 et seq. (1936); 
W.M. McGovern, "Homicide and Succession to Property" (1969) 68 Michigan 
Law Review, p. 65 et seq. There is ample case-law stating that "it is 
against public policy for a person who is guilty of feloniously killing 
another to take any benefit in that other person's estate" Re Johnson, 
(1950) 2 D.L.R. 69, at pp. 75-6 D.L.R., 1 W.W.R. 263.  J. Lepsius 
estimated in 1919 in his book  Deutschland und Armenien, p. 277 
that the profits accruing to the Young Turk oligarchy and its 
hangers-on from the expropriation of the Armenians amounted to not less 
than a thousand million German marks. David Marshall Lang wrote in The 
Armenians: "The Ottoman Bank President showed bank-notes soaked with 
blood and stuck through with dagger holes. Some torn ones had evidently 
been ripped from the clothing of murdered people ...", p. 28.

[54] Henry Morgenthau, Ambassador Morgenthau's Story, New York, 
1919. Reissued by Taderon Press, Reading, England, 2000, p. 225.

[55] (sic) imprescriptible or indefeasible.

[56] Irwin Cotler, op.cit., p. 621.

[57] Christopher J. Walker (ed.), Armenia and Karabagh, Minority Rights 
Group, London.1991, pp. 38-39.

[58] Dickran Koymjian, "Destruction des Monuments historiques Arméniens, 
poursuite de la politique turque de génocide" in Tribunal Permanent des 
Peuples, le Crime de Silence, Flammarion, Paris, 1984, pp. 295 et 
seq. ; « La Confiscation des biens et la destruction des monuments 
historiques comme manifestation du processus génocidaire » in, 
L'Actualité du Génocide des Arméniens, Edipol.1999, pp. 219-230. See 
also: Armenia, Minority Rights Report, No. 32, London 1976.

[59] Walker, op. cit., p. 37.David Marshall Lang quotes in his book "The 
Armenians. A People in Exile" London 1981, p. 27, the telegraph which 
Talaat, addressed to the Governor of Aleppo on 15 September 1915: 
"You have already been informed that the Government has decided to 
exterminate entirely all the Armenians living in Turkey. No-one opposed 
to this order can any longer hold an administrative position. Without 
pity for women, children and invalids, however, tragic the methods of 
extermination may be, without heeding any scruples of conscience, their 
existence must be terminated.". Also reported in the Daily Telegraph, 
London 29 May 1922. 

[60] Commission on Human Rights, Document E/CN.4/1999/65.

[61] Björn Westlie, Coming to Terms with the Past: the Process of 
Restitution of Jewish Property in Norway (Inst. of the World Jewish 
Congress, Policy Forum No. 12, 1996).

[62] UN Doc A/Conf.117/14.

[63] Kevork K. Baghdjian, La confiscation, par le gouvernement turc, des 
bien arméniens...dits abandonnés, Montréal, 1987.

[64] Lighthouses Arbitration between France and Greece, 23 International 
Law Reports pp. 659-676. C. Rousseau, « L'affaire franco-hellénique des 
phares et la sentence arbitrale du 24 juillet 1956 », Révue Générale 
due Droit International Public, Vol. 63 (1959) pp. 248-292. J.P. 
Monnier, « La succession d'Etats en matière de responsabilité 
internationale », AFDI, vol. 8 (1962) pp. 65-90 at pp. 80-85.

[65] For the question of the Federal Republic of Yugoslavia's status vis 
à vis the Genocide Convention, see Matthew Craven, The Genocide Case, 
the Law of Treaties and State Succession, British Yearbook of 
International Law, 1997, pp. 127-163.

[66] Armenia used to be a Soviet Republic. Thus, by principles of 
succession, the application of the Convention actually goes back to the 
date when the Soviet Union became a State party to the Genocide 
Convention, on 3 May 1954.

[67] Dickran Kouymjian, « La confiscation des bien et la destruction des 
monuments historiques comme manifestations du processus génocidaire » 
in L'actualité du Génocide des Arméniens, op cit., p. 227.
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